OFFICE HOURS: Should Terror Suspects Be Tried in Civilian or Military Courts?

With the Obama administration’s decision to pursue the death penalty through a military commission for Abd al-Rahim al-Nashiri, a Guantanamo detainee and alleged mastermind of the 2000 USS Cole bombing, the debate surrounding military commissions has returned to the public eye. In fact, it seems that every time any decision is made about a Guantanamo detainee, or any significant terror suspect, the argument raises its ugly face.

Proponents of military commissions insist they can avoid major obstacles to prosecution in criminal courts that are caused by burdensome legal technicalities. However, upon examination these technicalities are not the new, liberal, defendant-protective rights of the 1960s; more often they are procedural requirements on evidence that are meant to ensure evidence is reliable and which have developed over centuries.

In brief, the problems for prosecutors boil down to two things: the sources of government allegations and the fact that trials are supposed to be open to the public.

Basing a case on classified information or information that has been provided by foreign countries creates problems, as government agencies both foreign and domestic can be reluctant to explain how, where, or when that evidence was obtained. Constitutional and procedural rules require that this type of information be provided, in order to show that it is not the product of either mistake or fabrication, and to give the defendant a chance to explain it away. And at least in the case of information from foreign countries, this is not a problem that can be fixed by punishing the U.S. government, which may have no real power to force cooperation from overseas “partners.” It is conceivable that these overseas partners would be more willing to send evidence and witnesses to closed military proceedings.

Even when information is provided from overseas, foreign methods of gathering evidence and ensuring its integrity, let alone of detaining or interrogating suspects, may well not live up to normal U.S. standards. Several terror defendants have claimed to have been tortured overseas, although no U.S. court has accepted those claims yet, while more have questioned whether foreign evidence was the product of frame-ups or poor investigative work. As to the questionable interrogation methods of the U.S. itself, including the use of black sites, sleep deprivation, waterboarding and other infamous techniques, the one judge to rule on the issue so far determined that evidence derived from those techniques could not be used. Of course that case, along with all of the cases that dealt with these issues so far, ended in a conviction. In each of these areas, military commissions have slightly loosened the strict rules of trial procedures, allowing for the possibility that a greater amount of evidence would be admissible.

Procedural rules requiring attorneys to show how evidence was obtained, how it was handled, who is presenting it, and what biases that person may have in presenting the information are some of the most technical and formalistic in the legal system. Yet modifying these basics rules presents real risks for the integrity of jury trials. Should we rely on prosecutors to find and turn over this type of information? Should we rely on foreign governments to hand over such information to our prosecutors?

The federal courts, however, have come up with their own answers to these problems, from allowing witnesses to testify anonymously and in disguise to using rarely-employed exceptions to the rules of evidence in order to allow for the prosecution’s presentation. To deal with the problem of public trials, many judges simply choose to close part or all of a terrorism trial to the public, and/or to seal legal documents that would normally be part of the public record. These smaller measures may similarly threaten the integrity of these trials, and many are currently the subject of an appeal in New Orleans.

It is doubtful that the defendant benefits greatly from a criminal trial rather than a military commission. The history of federal prosecutions of terror suspects is one of almost universal success on the side of government prosecutors. In 2010, one study showed 598 “terror defendants” had been convicted in federal terrorism prosecutions since 2001, and only nine defendants had been acquitted. Of those acquittals, some were later deported while one was convicted and sentenced for perjury.

Really who wins and who loses should be beside the point. The rules of evidence that supposedly make life so difficult for prosecutors in federal courts, and even our prohibition on coerced evidence and our preference for open trials, have one thing in common: They help make our verdicts more reliable. The rules of evidence in military commissions vary some, but maybe not a lot, from our federal rules. We won’t know how much they vary for possibly a decade or more, after numerous appeals and (finally) a few trials. But if they don’t vary, why bother having a separate set of trials? And if they do, how much less reliable will those verdicts be, when defendants are not given the opportunity to fully question the origin of the evidence used against them?

Francesca Laguardia is a Ph.D. candidate in Law and Society at New York University, a graduate of the School of Law at New York University, and former Director of Research at the Center on Law and Security at NYU. She studies criminology, criminal justice, civil liberties and the War on Terror.